In a country where many individuals find themselves at the mercy of law enforcement, cases of unlawful arrest and detention are more common than people realise.
Every week, people are stopped, searched, and detained without fully understanding their rights or whether the police are acting within the law. In many instances, individuals walk away from these encounters feeling powerless, unaware that the law may in fact be on their side.
At Mbikiwa Legal Practice, we are currently handling a number of matters involving unlawful arrests and detentions. A recurring concern is that many people do not know when an arrest crosses the line from lawful to unlawful, and what remedies are available to them.
This post seeks to break down, in the simplest and most practical way, what the law in Botswana says about arrest and detention. Through a relatable fictional scenario, we aim to highlight when police conduct may become unlawful, and when an individual may have a valid claim for damages.
If you have ever wondered whether an encounter with the police was justified, or what your rights are in such situations, THIS IS FOR YOU.
‘’LO NTSHWARELANG?‘’ – UNLAWFUL ARREST & DETENTION IN BOTSWANA: WHEN A JOG TURNS IN TO A NIGHT IN A CELL
FICTIONAL STORY
1. Meet Slangeni Malangane, a rising football star in Gaborone and a striker for a popular local team. With the Africa Cup of Nations tournament in Morocco approaching, Slangeni had been putting in extra work during the off season, jogging daily around Block 7, past the BTV flyover towards Westgate Mall.
2. One Friday evening in June, while on his usual run with headphones in, Slangeni unknowingly passed police officers who attempted to stop him. Focused on his run, he did not hear them at first. It was only after one officer shouted that he came to a stop.
3. The officers questioned why he was running at speed in the dark and informed him that they wanted to search him. Slangeni calmly asked what he had done to justify the search. The officers responded that the area was associated with criminal activity and insisted that they were empowered by law.
4. Not satisfied, Slangeni questioned the basis of their suspicion and refused to be searched without a proper explanation. When he attempted to leave, the officers told him he could not. He pointed out that they could not stop him unless he was under arrest, at which point they informed him that he was.
5. Slangeni was taken to the police station, mocked along the way, and told that he needed to be taught a lesson. He was placed in a holding cell with other suspects, never formally charged, and released after two days.
6. However, the damage had already been done.
7. News of his arrest spread quickly across social media. As a result, Slangeni was dropped from the Botswana national team, the Zebras, and fined by his club for allegedly bringing the game into disrepute.
8. He has now approached our office, seeking to vindicate his rights following what he believes to be an unlawful arrest and detention.
WHAT THE LAW SAYS
9. An arrest is one of the most serious intrusions into a person’s liberty and dignity. For that reason, the law strictly regulates when and how it may be carried out.
10. For an arrest to be lawful, it must be based on reasonable suspicion that the person has committed, is committing, or is about to commit an offence.
11. Suspicion must meet the following standard:
11.1 It must be more than a guess or instinct;
11.2 It must be based on objective and explainable facts;
11.3 It must be reasonable in the circumstances.
12. In addition, once a person is arrested:
12.1 They must not be detained for longer than necessary;
12.2 Detention without a warrant may not exceed 48 hours unless a court authorises further detention
13. Where police cannot justify the arrest or detention within these legal limits, the arrest becomes unlawful.
WHY THIS ARREST WAS LIKELY UNLAWFUL
14. In Slangeni’s case, the justification given by the officers, that it was dark and he was running fast in an area associated with crime, falls short of reasonable suspicion.
15. Running, even at speed and at night, is not a crime. It does not, without more, reasonably suggest criminal activity, especially on a known jogging route used by others.
16. The situation was further aggravated by the following:
16.1 The officers failed to clearly provide a lawful basis for the search
16.2 The arrest appeared to follow Slangeni’s refusal to submit to an unjustified search
16.3 He was detained without being charged
16.4 He was detained for more than 48 hours
17. These factors strongly indicate that the arrest and subsequent detention were not grounded in law, but rather in retaliation and misuse of authority.
ASSESSMENT OF DAMAGES
18. If a court finds that Slangeni’s arrest and detention were unlawful, it will then determine what compensation he is entitled to.
19. The purpose of damages is not to enrich the individual, but to provide comfort for injured dignity and emotional suffering, while affirming the importance of the right to personal liberty.
20. In determining the appropriate award, courts consider factors such as
20.1 The presence of improper motive or malice
20.2 The manner and conditions of detention
20.3 The duration of the detention
20.4 The individual’s status and reputation
20.5 The extent of publicity surrounding the incident
21. In this case, several aggravating factors arise:
21.1 The officers indicated that Slangeni was being taught a lesson
21.2 He was detained in poor conditions
21.3 His arrest received widespread publicity
21.4 The arrest had a direct and serious impact on his career
22. These are all factors a court is likely to weigh carefully in assessing damages.
KEY TAKEAWAY: KNOW YOUR RIGHTS
23. Encounters with law enforcement can be intimidating, but it is important to remain composed.
24. If you are stopped or arrested:
24.1 Remain calm and respectful
24.2 Ask the basis for the search or arrest
24.3 Do not resist physically, even if you believe the police are wrong
24.4 Comply in the moment and challenge the conduct later through legal channels
If your rights have been violated, you have the right to seek recourse through the courts.
FINAL WORD
The right to liberty is one of the most fundamental rights protected by law. When it is infringed without justification, the courts serve as an important safeguard against abuse. Slangeni’s case is a reminder that police powers are not unlimited and that citizens are entitled to protection under the law.